Indus Water Treaty

Context: New Delhi has issued a notice to Islamabad seeking modification of the more than six-decade-old Indus Waters Treaty (IWT) that governs the sharing of waters of six rivers in the Indus system between the two countries. New Delhi said the notice follows Pakistan’s continued “intransigence” in implementing the treaty, by raising repeated objections to the construction of hydel projects on the Indian side

About the News

• India has informed Pakistan of its intention to amend the Indus Waters Treaty of 1960, which sets out a mechanism for management of cross-border rivers, because of the Pakistani side’s “intransigence” in implementing the pact.
• Despite the World Bank asking India and Pakistan to find a mutually agreeable way, instead of seeking separate processes, to address Pakistan’s objections to Kishenganga and Ratle hydroelectric projects in Jammu and Kashmir, Islamabad’s refusal to discuss the issue with India led to the government’s notice.
• The objective of the notice for modification is to provide Pakistan an opportunity to enter inter-governmental negotiations within 90 days to rectify the material breach of the Indus Waters Treaty. This process will also update the treaty to incorporate the lessons learned over the last 62 years.
• The notice was issued in line with Article XII (3) of the treaty, which states: “The provisions of this Treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments.”

Reasons

• The notice appears to be a fallout of a longstanding dispute over two hydroelectric power projects that India is constructing – one on the Kishanganga river, a tributary of Jhelum, and the other on the Chenab.
• Pakistan has raised objections to these projects, and dispute resolution mechanisms under the Treaty have been invoked multiple times. But a full resolution has not been reached.
• Construction on the 330 MW Kishanganga hydroelectric project built on the tributaries of the Indus began in 2007. Meanwhile, the foundation stone for the Ratle Hydroelectric Plant to be constructed on the Chenab was laid in 2013.
• Pakistan raised a dispute on the two projects, saying it violated the Indus Waters Treaty (IWT). Criticising the Kishanganga project, Islamabad said that it blocks water that flows into Pakistan.
• In 2015, Pakistan approached the World Bank and sought the appointment of a neutral expert to address its objections to the Kishanganga and Ratle Hydro Electric Projects. The very next year, Islamabad retracted the request and sought a court of arbitration to adjudicate its objections.
• In 2017, the World Bank said India is allowed to construct hydroelectric power facilities on tributaries of the Jhelum and Chenab rivers with certain restrictions under the 1960 treaty
• In May 2018, Prime Minister Narendra Modi inaugurated the Kishanganga project despite objections by Pakistan.
• The Kishanganga project stores around 0.65 million acre feet (MAF) of water from the Ujh river to irrigate at least 30,000 hectares and produce over 300 megawatts of power.
• In 2019, Nitin Gadkari, the then central minister for water resources, said India will stop water from flowing to Pakistan after the Pulwama attacks.

What are the Fresh Charges

• India’s letter to Pakistan said the latter’s move to initiate two simultaneous processes on the same questions which have the potential of bringing contradictory outcomes creates a legally untenable situation, which risks endangering the 1960 treaty.
• India said Pakistan hasn’t budged and despite its repeated efforts to find a mutually agreeable way forward, it refused to discuss the issue during the five meetings of the Permanent Indus Commission from 2017 to 2022.
• Under such circumstances, India issued a “notice of modification” of the treaty to its neighbour.

What is Indus Water Treaty?

• In the year 1960, India and Pakistan signed a water distribution agreement — came to be known as Indus Water Treaty which was orchestrated by the World Bank.
• This agreement took nine years of negotiations and divides the control of six rivers between the two nations once signed.
• Under this treaty, India got control over: Beas, Ravi, Sutlej (Eastern Rivers)
• Pakistan got control over: Indus, Chenab, Jhelum (Western Rivers)

Why this treaty is important for Pakistan

• Indus, Chenab and Jhelum are the lifelines of Pakistan as the country is highly dependent on these rivers for its water supply. Since these rivers do not originate from Pakistan but flow to the country through India, Pakistan fears the threat of drought and famine.
• While Chenab and Jhelum originate from India, Indus originates from China, making its way to Pakistan via India.
• The treaty clearly spells the do’s and don’ts for both countries; as it allows India to use only 20 per cent of the total water carried by the Indus river.

Permanent Indus Commission

• The Permanent Indus Commission (PIC) is a bilateral commission consisting of officials from India and Pakistan, created to implement and manage the goals and objectives and outlines of the Indus Waters Treaty (IWT)
• PIC is the channel of correspondence between the two countries for the purpose of IWT and first step for conflict resolution. If an agreement cannot be reached at the PIC level, the dispute can be referred to a Neutral Expert for the differences already identified in the treaty or referred to the two governments for approaching the Permanent Court of Arbitration (PCA). If the governments too fail to reach an agreement, the Treaty provides an arbitration mechanism. 
• Under the provisions of the Indus Waters Treaty, signed between India and Pakistan in 1960, the two Commissioners are required to meet at least once every year, alternately in India and Pakistan. 
• Under the provisions of Article VIII(5) of the Indus Waters Treaty, the Permanent Indus Commission is required to meet regularly at least once a year, alternately in India and Pakistan.

Can India cancel the pact unilaterally?

• The wording of the treaty has no provision for either country to unilaterally walk out of the pact. Article XII of the IWT says, “The provisions of this Treaty, or, the provisions of this Treaty as modified under the provisions of Paragraph (3), shall continue in force until terminated by a duly ratified treaty concluded for that purpose between the two governments.”
• This implies that if India wants to go about abrogating it, the country should abide by the 1969 Vienna convention on the law of treaties.

What exactly is the dispute redressal mechanism laid down under the Treaty?

• The dispute redressal mechanism provided under Article IX of the IWT is a graded mechanism. It’s a 3-level mechanism. So, whenever India plans to start a project, under the Indus Water Treaty, it has to inform Pakistan that it is planning to build a project.
• Pakistan might oppose it and ask for more details. That would mean there is a question — and in case there is a question, that question has to be clarified between the two sides at the level of the Indus Commissioners.
• If that difference is not resolved by them, then the level is raised. The question then becomes a difference. That difference is to be resolved by another set mechanism, which is the Neutral Expert. It is at this stage that the World Bank comes into picture.
• In case the Neutral Expert says that they are not able to resolve the difference, or that the issue needs an interpretation of the Treaty, then that difference becomes a dispute. It then goes to the third stage — the Court of Arbitration.
• The World Bank’s role is “limited and procedural”. Its role in “differences” and “disputes” is limited to designating individuals to fulfill roles as a neutral expert or in the court of arbitration proceedings when requested by either or both sides.
• There is a provision in the treaty for modification and there could be many things that India may like to change, or Pakistan may like to change.

Is India also at the receiving end being at the lower riparian with any other nation? Can such an action lead to violation of International law?

• There is a concept of upper riparian and lower riparian. Upper riparian is a place where the river originates and lower riparian is where it ends.
• Under international law, an upper riparian can never stop the flow of water to the lower riparian.
• The Bramhaputra river too originates in China and flows to India. Such a revocation of treaty can also lead to China consider such a possible measure in the near future where it might cite India’s example of what it possibly did to Pakistan.